Law Commons^™

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Karen H. Rothenberg

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Bowman

Mary N. Bowman

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Probability, Policy And The Problem Of Reference Class, Robert J. Rhee

Robert Rhee

This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …

The Politics Of Law And Film: Introduction To Symposium On Legal Outsiders In American Film, Jessica M. Silbey

Jessica Silbey

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …

Goodbye Forfeiture, Hello Waiver: The Effect Of Giles V. California, Monica J. Smith

Monica J Smith

In cases where a defendant’s actions caused a victim to be unavailable to testify, it had become common practice for courts to apply the doctrine of forfeiture by wrongdoing as an equitable principle. In 2008, the Supreme Court decided Giles v. California, and altered that exercise by adding a requirement that a defendant must actually intend to prevent a witness from testifying in order for forfeiture by wrongdoing to apply. The effect of the Supreme Court’s decision in Giles is a move from the doctrine of forfeiture by wrongdoing to a waiver of the confrontation right by misconduct, thereby aligning …

Federal Rule Of Evidence 502: Stirring The State Law Of Privilege And Professional Responsibility With A Federal Stick, Henry Noyes

Henry S. Noyes

Federal Rule of Evidence 502 was signed into law by President Bush on September 19, 2008. It is the last piece of the puzzle of e-discovery amendments. Rule 502 quietly takes the first steps toward federalization of two areas of law that traditionally have been subject to state regulation: The law governing waiver of the attorney-client privilege and the law governing an attorney's duties of professional conduct. This Article focuses on Rule 502(d) - the heart of this new Federal Rule of Evidence. This subsection permits a federal court to issue an order that protects against waiver of the attorney-client …

Fair Process And Fair Play: Professionally Responsible Cross-Examination, John F. Nivala

John F. Nivala

No abstract provided.

Neuroscience, Law & Government: Foreword To The Symposium, Jane Moriarty

Jane Campbell Moriarty

The legal and legislative systems have begun to rely on neuroscience in various types of decision-making. Without question, the relationship between the disciplines will become more enmeshed as more data is generated by neuroscientists. Are we ready for this potential sea change that will be both rich and strange?

Originality, Alex Stein, Gideon Parchomovsky

Alex Stein

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules …

Driving Through Arkansas? Have Your Dna Sample Ready, Brian Gallini

Brian Gallini

Visions Of Deception: Neuroimaging And The Search For Evidential Truth, Jane Moriarty

Jane Campbell Moriarty

The use of science in the search for truth poses consistent evidentiary problems of definition, causation, validity, accuracy, inferential conclusions unsupported by data, and real-world complications. And these evidentiary problems may well be implicated in the forensic use of neuroimages of deception. This article first briefly describes the various types of neuroimaging used to detect deception and describes some of the specific criticisms that have been leveled at the science. Second, the article outlines the standards governing admissibility and explains why the research to date does not yet meet any recognized standards of admissibility. Third, and finally, the article suggests …